Thalidomide victims claim drug cos. engaged in 50-year cover-up

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When Philip Yeatts was born in Brownfield, Texas, in September 1962, he had no right leg. His right arm ended in a stump above his elbow, and he had a cleft palate and deformed tongue. Annette Manning, born in Green Bay in 1960, had only buds of fingers and an arm that ended in a stump — just like Mary Hurson, born the same year in New York City, and Tammy Jackson, a 1962 baby in Ranger, Texas. In a heartbreaking new complaint against GlaxoSmithKline, Sanofi-Aventis, Aventor, and Grunenthal, these four plaintiffs, along with eight others (in three parts here, here, and here) claim that their birth defects resulted from their mothers’ use of the now-notorious anti-nausea drug Thalidomide — and that the drug companies engaged in a 50-year scheme to cover up how widely Thalidomide was prescribed in the U.S., and how varied were the birth defects that could result from the drug.

“The question is going to be, ‘Why now?’” said Steve Berman of Hagens Berman. “The answer is that medical science has advanced. We now understand the mechanism by which Thalidomide works. There’s been a complete change in the knowledge of how it caused birth defects.”

Thalidomide was widely prescribed as a treatment for morning sickness in Europe in the late 1950s and early 1960s, until evidence emerged that the drug resulted in grave birth defects. Some countries, including England and Germany, established compensation systems for Thalidomide victims. There was no such plan in the U.S., where drug companies said Thalidomide had only been prescribed in a very restricted controlled study. According to Berman, after the awful consequences of Thalidomide came to light in the 1960s, fewer than a dozen American families sued and reached settlement with the drug companies that made and marketed the drug.

Decades later, an Australian lawyer Berman knows was contacted by Australians who believed their birth defects were caused by Thalidomide — which has resurfaced as a potent treatment for a form of cancer. Berman’s friend, Peter Gordon, ultimately reached a settlement on behalf of Australian Thalidomide victims. News of that deal, Berman said, brought Gordon inquiries from Americans who suspected Thalidomide was responsible for their injuries. Gordon brought in Berman.

Berman’s better known as a securities and antitrust plaintiff’s lawyer, but he told me there was no chance he wouldn’t take this case once he heard victims’ stories. “It’s so compelling,” he said. “We all felt we had to do this.” Most of the clients Hagens Berman represents in the Thalidomide case, Berman said, “have been searching their whole adult lives to find out what caused this.”

Berman said his team dug into the archived records of, among other things, a 1962 Congressional investigation of the drug, which was never approved in the U.S. They found that contrary to what drug companies told the public, Thalidomide was prescribed to about 20,000 patients in the U.S., under the supervision of about 1,200 doctors. They also found evidence that the drug companies were aware of Thalidomide’s potentially tragic side effects long before the drug was pulled off the market in the Europe.

And many of those doctors didn’t keep careful records of patients who received the drug. As the Hagens Berman complaint makes clear, each alleged Thalidomide victim has a unique story. Some have medical records showing their mothers took Thalidomide during their pregnancies. Some have mothers who recall taking the drug; others have family members who will attest their mothers used Thalidomide. For some plaintiffs, Berman said, the nature of their birth defects is the only link they’ll be able to show to Thalidomide.

But recent research on the drug’s properties as a cancer treatment, he said, has made it clear that Thalidomide can cause the unilateral deformations some of his clients suffer, and not just the bilateral birth defects that have been traditionally associated with the drug. “It used to be that if you had the bilateral defect, known as flippers, you were called a Thalidomide baby,” Berman said. “Most of the others, doctors would just say, ‘This stuff happens.’”

Berman told me there are probably many more people born in the U.S. in the late 1950s and early 1960s whose birth defects were caused by Thalidomide, which, according to him, affected the children of almost every pregnant woman who took the drug.

I left a message for Glaxo lawyer Michael Scott, who removed the Thalidomide case from the Philadelphia Court of Common Pleas to U.S. District Court for the Eastern District of Pennsylvania. He didn’t return my call.

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Alison Frankel updates On the Case multiple times throughout the day on WestlawNext Practitioner Insights. A founding editor of the Litigation Daily, she has covered big-ticket litigation for more than 20 years. Frankel’s work has appeared in The New York Times, Newsday, The American Lawyer and several other national publications. She is also the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.